Hate Speech and Criminal Participation in the Manyemanya Scenario

The imposition of criminal responsibility is the main nucleus around which substantive criminal law lies as it touches directly on the notion of participation which is of critical importance for some reasons: first, it is the basis upon which a person is held criminally responsible. Secondly, it has a direct link with causation as a person can only be held criminally responsible for an act that is attributable to him or her. Thirdly, the determination of how to categorise a defendant (whether as the principal offender, a joint or co-offender, or an accessory) depends on the role played in the commission of the crime in question. Lastly, and in connection with the categorisation of the defendant, it plays a critical role in the sentencing of the defendant. For the above reasons, it can be argued that the notion of participation is very important in criminal law. The imposition of criminal responsibility on an individual or group of persons is premised on the fact that such an individual or group of persons would have, through some act or omission (conduct), brought about a prohibited act. To impose criminal responsibility on those individuals who were involved in the various stages of the crime, there would be a need for a careful demarcation of who did what, and at what time: that is key because not everyone can be charged as a principal offender, a co-offender or joint offender; an accessory before, during or after the crime. These distinctions are quite important because they play a role on what to indict the accused for (whether as a principal, co-offender, accessory, aider and abetter, or accessory after the crime). The kind of participation of an individual also plays a critical role in determining the appropriate sentence to seek for such an individual if he is convicted for the crime. This intricate character of the broader notion of participation in criminal law as exemplified in the bank robbery scenario is not very different from the Manyemanya scenario: responsibility for hate speech spewed prior to and during brewing hostilities, to the masses who may react to it differently, but more importantly, in the context of a likely joint criminal enterprise.