Abstract

This paper develops the theory of Extra-Constitutional Non-Existence in democratic republics, arguing that once sovereignty is institutionalized through a constitution, no legitimate political action can exist outside it. Drawing from social contract theory (Hobbes, Locke, Rousseau), Madisonian republicanism, and Kenya’s constitutional jurisprudence—as well as the constitutional theories of Carl Schmitt, Emmanuel Joseph Sieyès, and Hans Kelsen—the paper contends that the people’s sovereign authority is fully realized through constitutionalism. It refutes the notion that the people retain a latent, recoverable sovereignty outside constitutional structures, demonstrating instead that extra-constitutional action destabilizes political equilibrium and undermines the rule of law. The study concludes by advocating for the self-corrective capacity of the Constitution of Kenya, 2010, as the sole legitimate framework for democratic renewal.

Introduction

In December 2007, Kenya descended into chaos as disputed election results sparked violence that claimed over 1,300 lives and displaced hundreds of thousands—a stark reminder of what happens when political grievances bypass constitutional channels. The Constitution of Kenya, 2010, emerged from this crisis, redefining sovereign power by vesting ultimate authority in the people while constraining its exercise within legal bounds. Yet tensions persist, evident in mass protests, political negotiations (e.g., the NADCO Report and the 2018 "handshake"), and judicial rulings like the Building Bridges Initiative (BBI) and Njoya cases. While courts have clarified procedural limits on constitutional amendments, a deeper question lingers: Can legitimate political action exist outside the constitutional framework?

This paper argues that in a democratic republic, no extra-constitutional political existence is permissible. Synthesizing social contract theory, Madisonian republicanism, and Kenya’s constitutional jurisprudence, it posits that sovereignty, once institutionalized, is inseparable from constitutional processes. Assertions of extra-constitutional authority risk destabilizing the rule of law and the republic’s foundational compact. The paper first explores theoretical foundations, then applies them to Kenya’s constitutional framework, rebuts arguments for extra-constitutional sovereignty, and concludes with the Constitution’s self-corrective promise. At its core is the social contract—the idea that the people surrender certain freedoms for regulated governance. Once this contract is formalized in a constitution, sovereignty is channeled through institutions and procedures, making the constitutional order the exclusive framework for its exercise.

1.     Theoretical Foundations

1.1  The Social Contract and the Nature of Political Authority

Social contract theory underpins constitutional sovereignty by offering a philosophical foundation for the legitimacy of political authority. Hobbes’ Leviathan (1651) presents the social contract as a pragmatic surrender of natural rights to an absolute sovereign to escape the chaos of the state of nature. This view prioritizes order over liberty, reflecting the necessity of centralized power to maintain peace. Locke’s Two Treatises of Government (1689) departs from Hobbes by anchoring legitimacy in the government’s duty to protect life, liberty, and property—tying sovereignty to the preservation of fundamental rights rather than mere stability. Finally, Rousseau’s The Social Contract (1762) further develops the theory by introducing the concept of the "general will"—a collective expression of the people’s common good, distinguishing legitimate authority from mere power, which this paper seeks to advance.

While these foundational thinkers offer different perspectives, they converge on the idea that the social contract binds both the people and the state to reciprocal obligations: the people surrender certain freedoms in exchange for the state’s guarantee of security and justice. The constitution institutionalizes this covenant, transforming sovereignty from raw, unmediated power into a regulated framework that balances individual liberty with collective governance. This shift marks the transition from a pre-constitutional to a constitutional order, rendering any extra-constitutional claim to sovereign authority illegitimate. Madisonian republicanism refines this idea by channeling sovereignty through representative institutions, checks and balances, and judicial review. In Federalist No. 10, Madison warns of majority tyranny, advocating structured governance to protect minorities. Federalist No. 51 adds that "ambition must be made to counteract ambition," encapsulating the principle that power must check power to prevent its abuse. These principles distinguish republicanism from raw populism by embedding popular sovereignty in institutional processes rather than direct mass action.

Kenya’s constitutional design mirrors Madisonian republicanism by embedding checks and balances within the separation of powers. The Executive is restrained by parliamentary oversight (Article 95), while independent commissions like the Ethics and Anti-Corruption Commission (EACC) and the Office of the Auditor-General act as further checks. Judicial review (Article 165(3)(d)) empowers courts to adjudicate constitutional questions, guarding against both popular excess and executive overreach. Kenyan jurisprudence affirms this structured sovereignty. In 2017, Chief Justice David Maraga led the Supreme Court in nullifying a presidential election, citing constitutional violations. This ruling underscored that political disputes must be resolved within legal frameworks rather than through unilateral assertions of popular will. Similarly, the Building Bridges Initiative (BBI) case reinforced that constitutional change must adhere to procedural safeguards. These precedents demonstrate that while popular sovereignty is foundational, it must always operate within constitutional confines.

Even the individual’s sovereign power—derived from the collective sovereignty of the people—is subject to the Constitution. The individual’s autonomy is not absolute but must conform to constitutional principles and private law, ensuring that personal actions align with the broader social contract. This understanding fortifies the constitutional order by embedding the rule of law at every level of political existence, setting the stage for analyzing whether legitimate political action can exist outside the constitutional order vested in the constituent power.

1.2  Constituent vs. Constituted Power: The Republic as a Complete Social Contract

Constituent power is the raw, unbounded authority inherent in the people to create political order. Constituted power, by contrast, is the authority exercised within the legal framework established by a constitution. Theorists such as Carl Schmitt and Emmanuel Joseph Sieyès articulate this distinction. Schmitt situates constituent power in the sovereign’s capacity to act decisively during existential crises—an extra-legal force that suspends and redefines the political order. Sieyès, by contrast, locates constituent power in the collective will of the nation, an indivisible, pre-legal entity capable of instituting constitutions through revolutionary rupture. While Schmitt emphasizes existential decisionism and the exception, Sieyès frames constituent power as a universal democratic act of self-foundation. Despite their differences, both agree that constituent power transcends constituted legal systems and serves as the ultimate source of political legitimacy.

This paper rejects Schmitt’s portrayal of constituent power as a “dormant volcano”—an ever-present extra-constitutional force capable of erupting during crises. Schmitt’s exceptionalism misapprehends the logic of modern constitutionalism. Once a people institutionalizes sovereignty through a constitution—a social contract—it does not merely codify rules but sublimates constituent power into constituted power. As Sieyès argued in his seminal pamphlet What is the Third Estate? (1789), the constitution is not a passive text but a totalizing framework that absorbs the nation’s primordial authority, rendering it dormant. To invoke constituent power outside this framework is not to reclaim democracy but to betray it, for the republic, by design, admits no sovereignty beyond its own rules. As Kenya’s Constitution (2010) affirms: “All sovereign power belongs to the people… [and] shall be exercised only in accordance with this Constitution.”

This constitutionalist vision aligns with the Westphalian order’s foundational premise: sovereignty, once institutionalized, operates exclusively within legal-institutional bounds. The Peace of Westphalia (1648) marked a departure from feudal chaos by enshrining territorial sovereignty and legal continuity as the basis of state legitimacy. In this framework, the modern republic exists only through its constitutional order. International law—from the UN Charter to human rights treaties—recognizes no abstract “people” beyond their institutionalized form.

This is not merely a legal nuance but the very essence of the republic’s DNA. At its core, the rule of law establishes the constitution’s supremacy over brute force, ensuring that no actor—even a majority—can exercise unchecked power. Integral anti-majoritarian safeguards, such as judicial review, the separation of powers, and entrenched rights like those found in Kenya’s Bill of Rights, protect minorities from the kind of unified tyranny that Schmitt warned against. Moreover, procedural sovereignty guarantees that the will of the people is expressed solely through democratic channels—through elections, constitutional amendments, and other participatory mechanisms—rather than through extra-constitutional actions such as coups or “revolutionary” decrees. Ultimately, this framework is not only a noble foundation but the ultimate pursuit of a republic: to shield the ultimate minority—the individual—from unprocedural and illegal actions by the majority.

Allowing Schmittian exceptionalism to take hold would dismantle the Westphalian compact. Schmitt’s claim that constituent power remains perpetually available overlooks a crucial reality: modern states derive legitimacy from structured institutional discipline, not the looming possibility of revolution. His theory, seductive in its populist vigor, risks collapsing into chaos. If sovereign power can emerge outside the constitution, what stops an opportunistic leader from manipulating "the people's will" to strip away minority rights? This risk was evident in Weimar Germany, where Article 48, meant for emergencies, was repeatedly used to erode democratic institutions, ultimately paving the way for authoritarian rule under Adolf Hitler’s National Socialist Party. Sieyès, despite his revolutionary leanings, foresaw this danger. While he believed in the people’s power to shape their government, he argued that this authority must solidify into legal institutions to prevent disorder. Kenya’s constitutional framework reflects this principle by ensuring that sovereignty is exercised through structured legal processes—not unchecked political will.

Carlos Schmitt’s position is not without merit. His insistence on sovereignty’s dynamism and its capacity to confront existential crises reflects a rational critique of rigid legal formalism. However, by detaching sovereignty from any legal grounding, Schmitt leaves constituent power in a nebulous, unregulated state. In contrast, the republican framework ensures that even the highest authority remains accountable to constitutional processes. Sieyès’ distinction between pouvoir constituant (constituent power) and pouvoirs constitués (constituted powers) is instructive. While constituent power represents the people’s fundamental authority to create a new legal order, it cannot remain an open-ended force without undermining stability. Sieyès argued that once the people establish a constitution, their sovereign will is not lost but transformed into structured governance. This ensures that power is not wielded arbitrarily but channeled through institutions that balance representation, legality, and continuity. In the Kenyan context, this principle is embedded in the 2010 Constitution, which provides mechanisms—such as referenda, judicial review, and devolution—to mediate the people’s will through lawful procedures. The alternative—reviving raw constituent power at will—would invite chaos, threatening Kenya’s hard-won constitutional order.

The republic replaces Schmitt’s “exception” with procedural rigor by embedding sovereignty within institutional frameworks that regulate its exercise. Instead of allowing raw power to manifest unpredictably in times of crisis, the republic channels it through structured processes such as judicial review, legislative checks, and constitutional amendments. These mechanisms prevent power from being wielded arbitrarily while still allowing the system to adapt to changing political realities. Democracy, therefore, survives not by suspending legal norms but by ensuring that sovereignty remains continuously expressed through lawful means. Sovereignty, once institutionalized, must obey the self-imposed constraints of its foundational framework—or it ceases to be sovereignty and becomes mere force.

Kenya’s 2010 Constitution exemplifies this sublimation. Drafted after decades of autocracy and ethnic violence, it extinguished the possibility of extra-constitutional sovereignty. Devolution, public participation clauses, and judicial independence were not concessions to popular power but Sieyèsian mechanisms to channel it irreversibly into constituted forms—since the constitution is the people’s ultimate expression, even when limiting their immediate will. While Kenyan courts have avoided explicit engagement with Schmitt’s theory, their jurisprudence leaves no room for unmediated constituent power. In the BBI case, the High Court declared:

  "The Constitution does not contemplate… constitutional change outside [its] provisions… The sovereign people must exercise their constituent power strictly within the confines of the existing Constitution"

  (David Ndii & Others v. Attorney General, 2021).

Similarly, in Njoya (2004), the court affirmed that amendment procedures are not mere formalities but "the constitutionalization of Sieyès’ pouvoir constituant—a disciplined, procedural sovereignty." (Njoya & Others v. Attorney General, 2004). These rulings implicitly acknowledge constituent power as a theoretical residue yet insist it has no practical space for exercise within a functioning republic. Schmitt’s “dormant volcano” is thus rendered inert, buried under layers of legal process in the republican context.

Critics might argue that this rigid approach limits democracy. However, Kenya’s history shows the opposite. The 2007 post-election crisis, which fomented a moment of legal and political breakdown, led to widespread violence and instability. The response was not an appeal to extra-constitutional power but a commitment to constitutional reform, culminating in the 2010 Constitution. By channeling sovereignty into structured legal processes, this order ensured that future crises would be resolved within the law—not outside it. Rather than silencing the people, this evolution signified their political maturity: their voice is now embedded in the institutions they created, eliminating the need for radical, extra-legal action.

Further, in extreme cases of constitutional failure, such as state capture or electoral collapse, the remedy remains reform through prescribed channels—not Schmittian eruptions. As the BBI case demonstrated, even transformative changes must adhere to procedural frameworks. To resurrect unmediated constituent power would unravel Sieyès’ social contract, replacing the rule of law with arbitrary force.

The principle extends beyond Kenya. The U.S. Civil War (1861–1865) provides a stark example of the dangers of extra-constitutional action. Southern states, claiming to exercise their sovereign right, invoked "popular sovereignty" to justify secession, bypassing legal mechanisms and plunging the nation into war. The war’s aftermath affirmed a critical truth: sovereignty, once institutionalized within a constitutional order, cannot be selectively reclaimed without jeopardizing the stability of the entire system. Abraham Lincoln captured this in his famous dictum that “no government proper ever had a provision in its organic law for its own termination.”

Kenya’s post-2007 reforms reflect the same principle. The violence and instability that followed the disputed election were not resolved through a revolutionary reset but through constitutional renewal. The adoption of the 2010 Constitution reaffirmed that legitimacy must always be reclaimed within legal boundaries—not outside them. Just as America’s Reconstruction Era sought to reinforce the indivisibility of the Union through legal and institutional means, Kenya’s constitutional reforms ensured that future crises would be mediated through structured governance rather than extra-legal assertions of power. What emerges from the above analysis is that once sovereignty is embedded in a constitutional framework, retreating into pre-constitutional chaos is not a path to renewal but a descent into instability.

1.3  Constitutional Incompleteness and the Basic Structure Doctrine

One of the most contentious judicial interventions in modern constitutionalism is the creation of the Basic Structure Doctrine. Originating in Indian jurisprudence (Kesavananda Bharati v. State of Kerala, 1973), the doctrine asserts that certain constitutional principles are immune to amendment—an idea fundamentally at odds with Kenya’s commitment to procedural sovereignty. In the BBI case, the Kenyan Supreme Court declined to declare any aspect of the 2010 Constitution inherently unamendable. Instead, it reaffirmed that constitutional change must occur strictly through Articles 255–257, emphasizing legal process over judicially imposed constraints (David Ndii & Others v. Attorney General, 2021). This ruling reflects the republican principle that a constitution, once enacted, is the exclusive framework for expressing popular sovereignty since the people’s will is realized through the document—not above it.

The Basic Structure Doctrine introduces a paradox that undercuts the logic of the social contract. By imposing unamendable limits without explicit textual grounding, it reintroduces the notion of a sovereign authority operating beyond the constitutional order. This contradicts the core republican idea that a constitution’s strength lies in its ability to mediate power through institutions rather than through arbitrary appeals to abstract popular will. Kenya’s constitutional framework is designed to accommodate even transformative reforms through lawful amendment processes. Allowing courts to invent unamendable principles undermines democratic accountability, shifting power away from the people and into the hands of unelected judges, thereby fracturing the constitutional compact.

Hans Kelsen’s theory of legal hierarchy reinforces this critique. For Kelsen, a constitution derives legitimacy from its internal coherence—not from judicial interpretations of implied principles. Similarly, Yash Pal Ghai (2011) cautions that the Basic Structure Doctrine reflects a fundamental distrust in the people’s ability to self-correct through constitutional mechanisms. Kenya’s 2010 Constitution affirms this skepticism: its self-corrective structures are explicitly embedded within its text, negating the need for judicially imposed safeguards. To graft the Basic Structure Doctrine onto this framework would suggest that Kenya’s constitution is incomplete—a notion that its robust amendment process categorically refutes.

More critically, the doctrine risks undermining the very sovereignty it claims to protect. In a constitutional order like Kenya’s, where all power is “exercised only in accordance with this Constitution” (Article 1), the only legitimate amendment limits are those imposed by the people themselves. Judicially created unamendability, however, elevates an unelected authority above the constitutional order, disrupting the delicate balance between popular sovereignty and institutional discipline.

The BBI rulings’ rejection of the Basic Structure Doctrine marks a decisive affirmation of Kenya’s constitutional ethos. By holding that even fundamental changes must adhere to Articles 255–257, the courts reinforced that a constitution is not a rigid artifact but a dynamic system, capable of renewal without judicial overreach or populist disruption (David Ndii & Others v. Attorney General, 2021). This approach dispels fears of a democratic straitjacket, ensuring that sovereignty remains structured—rejecting both raw majoritarian impulses and judicial oligarchy.

Ultimately, the Kenyan model resolves the tension by asserting that the people’s authority is neither erased nor left in an abstract limbo. Instead, it is transformed into a self-correcting order, demonstrating that a republic founded on rigorous procedures needs no mythical “higher” authority to sustain itself.

2.     Popular Will and Constitutional Sovereignty

The Constitution of Kenya, 2010, codifies the social contract, vesting sovereignty in the people (Article 1(1)) while channeling it through institutions like Parliament, the Executive, and Judiciary (Article 1(3)). The supremacy clause (Article 2) ensures all power—popular or delegated—bows to the Constitution. This regulated sovereignty—which existed even prior to the 2010 Constitution—was tested in 2007–2008 when post-election violence erupted outside constitutional bounds, only to be resolved through the National Accord and the 2010 Constitution—a triumph of lawful process over chaos (Ghai & McAuslan, 2011).

In recent years, schemes that invoke direct sovereignty—leveraging mass protests and civil disobedience to paralyze government operations and force negotiations outside any legal framework—have become a strategic bargaining tool. The 2018 “handshake” between President Uhuru Kenyatta and opposition leader Raila Odinga, along with the 2023 National Dialogue Committee (NADCO) talks following post-election protests, illustrate this trend. Both episodes began with claims of exercising sovereign power under Article 1 of the Constitution, flouting public assembly laws and official law enforcement warnings. Ultimately, these extra-constitutional actions culminate in constitutionally dubious arrangements that merge the opposition with the government into what William Ruto has called “a mongrel government,” a scenario where the lines between who is in opposition and who is in power become indistinguishable.

Yet, these movements ultimately gravitated toward constitutional mechanisms, seeking political settlements within formal legal frameworks. This recurring pattern underscores that even extra-constitutional claims inevitably seek validation through established constitutional channels, reinforcing the argument that no political existence is sustainable outside the constitutional framework. At the same time, the tendency to loosely interpret Article 1 and invoke popular sovereignty as a means to subvert constitutional order for sectarian gains highlights a critical danger: such practices risk undermining the republic and the rule of law. The deliberate use of constitutional language to cloak extra-constitutional actions reveals both the power and the resilience of the constitutional order—demonstrating that the republic’s foundational compact remains the final arbiter of legitimacy. This issue transcends academic debate, as it directly impacts the future of democratic governance and the safeguarding of legal norms.

Devolution (Chapter Eleven), Public Participation (Articles 118, 201), and Independent Commissions (Article 248) enhance the Constitution’s self-corrective capacity. These mechanisms diffuse power, promote accountability, and allow incremental reform without resorting to extra-constitutional action. However, the persistence of extra-constitutional political actions in Kenya exposes a critical weakness in the public’s understanding of the social contract’s finality.

A striking example is the 2018 attempt by opposition leader Raila Odinga to swear himself in as the "People's President" following disputed election results. This act, justified by appeals to Article 1’s provision on direct sovereign power, directly violated the constitutional order and demonstrated the dangers of invoking popular sovereignty outside institutional frameworks. Similarly, the NADCO process in 2023 began with disruptive protests justified on the same premise—that the people’s sovereign will , could bypass constituted authority through mass action. Both instances illustrate how extra-constitutional tactics are strategically deployed to force negotiations that ultimately lead to political settlements within the legal framework.

These examples reinforce the argument that no extra-constitutional action can sustain itself independently. Even when initiated outside the law, such actions inevitably seek validation through constitutional channels—whether through formal negotiations, executive appointments, or legal ratification. This cyclical pattern highlights the enduring supremacy of constitutionalism in a democratic republic. It also proves that the constitutional framework, while not immune to manipulation, remains the only legitimate avenue for political renewal and power reconfiguration. The self-corrective capacity of the Constitution thus stands as the definitive mechanism for reconciling political contestations without undermining the rule of law.

3.     The People’s Primordial Right to Reclaim Sovereignty: A Rebuttal

3.1  The Primordial and Its Misconception

The people’s primordial right to organize society is real but not perpetually available once a constitution is ratified. Social contract theory, as articulated by Locke, Rousseau, and Kelsen, establishes that this raw constituent power is voluntarily surrendered in favor of regulated governance (Locke, 1689; Rousseau, 1762; Kelsen, 1945). The transformation of constituent power into constituted power marks the point at which the people’s sovereign will becomes subject to self-imposed legal limits. This surrender is not simply procedural but represents a philosophical reconfiguration of power—from arbitrary, unmediated authority into a framework bound by collective norms.

Many Kenyan lawyers have argued that the people’s sovereign power remains recoverable outside the constitution in moments of political crisis. This view often relies on a misinterpretation of Article 1 of the Constitution, which vests sovereignty in the people. However, this argument disregards the essence of the social contract, which holds that the act of constitution-making is itself the highest expression of the people’s will. Once sovereignty is institutionalized, it is not available for continuous reclamation without destabilizing the republic’s foundational order.

Yash Pal Ghai (2011) critiques this misconception, arguing that the 2010 Constitution’s comprehensive participatory process exhausted the people’s direct constituent power, leaving only regulated mechanisms for constitutional change. Hans Kelsen’s Grundnorm theory further supports this view by asserting that the constitution is the ultimate source of validity for all legal norms, making any invocation of raw popular power outside the constitution illegitimate (Kelsen, 1945).

In extreme cases of constitutional failure—such as widespread electoral fraud or state capture—the appropriate remedy remains reform through prescribed channels like judicial review, parliamentary oversight, or constitutional amendment. As the BBI case demonstrated, even far-reaching changes must adhere to the Constitution’s procedural framework (David Ndii & Others v. Attorney General, 2021). Allowing the re-emergence of constituent power without these constraints would dismantle the social contract’s delicate balance between popular sovereignty and the rule of law, inviting chaos rather than renewal. This understanding reinforces that the only legitimate mode of political action in a republic is one that operates within the constitutional framework, even in times of profound crisis.

3.2  The False Dichotomy Between Popular Sovereignty and Constitutionalism

Popular sovereignty and constitutionalism are not inherently opposed; rather, the Constitution embodies the people’s will, formalized through legal processes. The crucial distinction lies in recognizing that, in a republic, popular sovereignty is not an amorphous, ever-present force but a collective authority that must be channeled through legally sanctioned mechanisms. In Kenya, for instance, the people’s sovereign power is exercised collectively through multiple avenues: universal suffrage, as outlined in Articles 38 and 81; political association, under Article 36; public participation, per Article 118; and referenda, as provided in Article 255. These institutional pathways ensure that the collective will is neither fragmented nor subject to manipulation, but is instead filtered through frameworks designed to protect both majoritarian rule and minority rights.

The argument that the people’s sovereign power can be perpetually mobilized outside the constitutional process often neglects the reality that for the collective will to gain legal recognition, it must be expressed via established procedures. Scholars such as Yash Pal Ghai (2011) emphasize that the Constitution of Kenya, 2010, emerged from an exhaustive participatory process—where constituent power was not only activated but fully expended in the act of 

constitution-making. Similarly, Ben Nwabueze (1973) contends that in republics, popular sovereignty must be exercised through predefined legal channels to avoid the disorder of unregulated mass action.

Nevertheless, Kenyan political practice has repeatedly witnessed attempts to invoke direct sovereignty as a tool of political bargaining. The 2018 self-swearing-in of Raila Odinga and the 2023 NADCO protests serve as stark illustrations of how the rhetoric of popular sovereignty is frequently weaponized to circumvent constitutional procedures. In each instance, actions initially launched as extra-constitutional claims eventually sought validation through formal negotiations, reinforcing the theory of Extra-Constitutional Non-Existence. Ultimately, while popular sovereignty forms the cornerstone of constitutionalism, it is not an unbounded force but one that must operate within—and is ultimately constrained by—the legal framework it helps to create.

4.     Mediated Power: Transforming Raw Force into Legitimate Authority

At the heart of a democratic republic lies a clear distinction between raw power and legitimate authority. Raw power—unmediated and unrestrained by institutional checks—is antithetical to constitutional governance in a republic, as Max Weber famously argued through his theory of rational-legal authority. For Weber, legitimate authority in modern states derives not from arbitrary force but from adherence to codified laws and bureaucratic processes, ensuring that power is exercised through a "legally established impersonal order" (Weber, as cited in secondary sources). This insight aligns with the republic’s foundational aim: to transform raw, anarchic force into accountable authority through the social contract.

John Locke’s Consent Theory further bolsters this distinction by asserting that legitimacy arises from the collective agreement of the governed. Individuals willingly cede their raw power to a governing body in exchange for the protection of their rights and the assurance of structured order (Locke, 1689). In a similar vein, Thomas Hobbes emphasized that unchecked power leads to a “nasty, brutish, and short” existence, necessitating a Leviathan-like state that mediates force through institutionalized authority (Hobbes, 1651). The Constitution, as the embodiment of this social contract, functions not merely as a set of guidelines but as the framework that channels popular sovereignty into mechanisms—such as separation of powers and judicial review—that John Rawls identified as essential for legitimacy when governance reflects principles that citizens would rationally endorse.

Critically, attempts to bypass constitutional mediation—even under the guise of democratic empowerment—risk eroding legitimacy. Ronald Dworkin cautioned against conflating popular appeals with lawful authority, arguing that obligations in a republic stem from institutional integrity rather than transient majorities. This perspective echoes Jürgen Habermas’s warning of “legitimation crises,” where governments lose credibility by prioritizing short-term populism over procedural fairness. In essence, the republic’s survival depends on its ability to transmute raw power into authority that is bound by the rule of law. As Weber noted, rational-legal systems resist corruption by subordinating individual whims to impersonal rules—a vision mirrored in James Madison’s Federalist No. 51, which advocates for constitutional checks that prevent factions from imposing an unrestrained will (Madison, 1788). Thus, any extra-constitutional assertion of power—no matter how democratically framed—violates the core tenet of the social contract: that legitimacy arises not from unmediated force but from its transformation through enduring, equitable structures.

In a republic, no individual or group can legitimately exercise raw power because the only recognized form of power is authority—power that is mediated and sanctioned by the Constitution. Raw power, unbridled by institutional checks and balances, falls outside the social contract that underpins democratic governance. The Constitution transforms the potentially anarchic force of raw power into accountable authority through established mechanisms like separation of powers, judicial review, and representative elections. As Max Weber argued, legitimacy derives from a "legally established impersonal order" rather than from arbitrary coercion, and John Locke’s consent theory reinforces that legitimate authority comes only from collective agreement expressed within constitutional parameters.

Thus, any claim to direct, unmediated sovereign power lacks recognition in a republic because it circumvents the very structures designed to channel popular sovereignty into lawful governance. Only authority that stems from and operates within the constitutional framework is considered legitimate and permissible. This essential distinction—between the unrecognized raw force and constitutionally mediated authority—ensures that power remains accountable, prevents the imposition of unilateral will, and ultimately safeguards the rule of law.

                                                                                 Conclusion

The theory advanced in this paper—extra-constitutional non-existence—asserts that in a republic, power exercised outside the constitutional framework cannot attain recognition or legitimacy. Building upon the foundational work of legal scholar Emmanuel Joseph Sieyès, particularly his distinction between constituent power and constituted power as articulated in his seminal pamphlet What is the Third Estate? (1789), this theory emphasizes that the social contract is essential in transforming raw, unbridled power into mediated, accountable authority.

As articulated by thinkers like Locke and Rousseau, the social contract is not merely an abstract ideal but a practical necessity that ensures governance remains accountable, transparent, and subject to the rule of law (Locke, 1689; Rousseau, 1762). By insisting that political action must be rooted in constitutional ideals, this theory rejects expedient measures and affirms that every exercise of power—whether by individuals, factions, or institutions—must conform to both the procedural and substantive norms of the constitution.

This discussion is far from abstract; it has profound implications for political hygiene, particularly in contexts such as Kenya, where extra-constitutional actions often erode democratic governance. Political parties—funded by taxpayers and entrusted with representing the public—must operate strictly within constitutional boundaries rather than resorting to expedient tactics such as purchasing political loyalty, facilitating party-switching without due process, or challenging governmental legitimacy through extra-constitutional means. Similarly, the judiciary plays a critical role in establishing jurisprudence that curbs such actions, thereby reinforcing the constitution as the ultimate arbiter of political conduct. For instance, the recent petition by some Kenyans to invoke direct sovereignty through a referendum aimed at removing the president exemplifies a fundamental misinterpretation of constitutional principles. While popular sovereignty forms the bedrock of a republic, it must always be exercised through legally defined channels—not through ad hoc or extra-constitutional mechanisms.

The central question posed in this paper—Can extra-constitutional political action survive in a republic?—must be answered with a resounding NO. A republic’s survival hinges on its capacity to reject raw, unmediated power and to embrace authority that is transparent, accountable, and firmly anchored in the rule of law. Extra-constitutional actions, regardless of how democratically they are framed, undermine the social contract and erode the foundational pillars of constitutional order. This paper calls upon Kenyans—and all citizens of democratic republics—to demand that their leaders adhere to constitutional norms and to hold them accountable when they do not. Only by steadfastly reaffirming the supremacy of the constitution can we safeguard the republic and ensure that governance truly reflects the collective will and welfare of the people.

THE END 

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