Court reduces ICPC’s power to freeze bank accounts

An Abuja High Court has restricted the power of the Independent Corrupt Practices and Other Related Offences Commission (ICPC) to freeze suspicious bank accounts, ruling that freezing such accounts for up to one year is “totally unreasonable” and usurps the power of the court.

Justice James Omotosho maintained that the ICPC’s power to freeze individual accounts may be subject to abuse by the commission, noting that “power corrupts, and absolute power corrupts absolutely,” while delivering judgment in a suit filed by the Lawyers Network Against Corruption (LNAC).

The judgment came on the heels of a suit filed by an Abuja-based lawyer, Ezenwa Anumnu, on February 20, 2024, on behalf of LNAC. The suit alleged that the ICPC Chairman had directed the freezing of citizens’ bank accounts without court orders or recourse to the courts. The commission reportedly ordered banks and financial institutions to withhold monies and properties of Nigerians found guilty of committing any criminal offense without a court order.

In a statement released to the press, LNAC argued that under Section 36(1) and (2) of the 1999 Constitution, as amended, the ICPC is not empowered to make orders restraining dealings on money or property of a person held in a bank or financial institution.

The group also contended that Section 45(1) of the ICPC Act, 2020, is inconsistent with Section 36(1) and (2) of the 1999 Constitution and is, therefore, invalid, null, and void. It sought an order of perpetual injunction restraining the ICPC and its Chairman, their agents, or their privies from issuing such orders.

In his judgment, Justice Omotosho noted that every Nigerian citizen has a fundamental right to own movable and immovable property under Section 44(1) of the Constitution. However, he added that while this right is guaranteed, it is not absolute and can be curtailed under certain circumstances.

He explained that the intent behind Section 44(2)(k) of the Constitution is to empower enforcement agencies to seize properties suspected to be instruments or proceeds of crime. This allows thorough investigations and case preparation for prosecution.

Observing that Section 45(1) of the ICPC Act empowers the commission to direct banks to freeze accounts under investigation, Justice Omotosho questioned whether the provision aligns with constitutional requirements.

He cited Section 36 of the Constitution, which guarantees individuals the right to a fair hearing, stating that it requires individuals to be afforded an opportunity to be heard before decisions affecting them are made. Laws that do not provide such opportunities, he stressed, are liable to be invalidated.

Although the ICPC Act clearly grants the Chairman the power to freeze bank accounts, the judge emphasized that only courts of law should issue such orders. Allowing the ICPC Chairman to freeze accounts without a court order, he said, could result in injustice to account holders, as the freeze could last longer than necessary and potentially cripple personal or commercial interests.

Rejecting ICPC counsel Mr. L.C. Iledunnu’s argument that freezing orders can be varied by the ICPC Chairman and lapse after 12 months, the judge noted: “A year in the life of a person or business is a long time, and asking them to wait for that long may be inimical to progress.” This is especially true, he said, in cases where investigations do not lead to charges, effectively wasting the account holder’s time.

Justice Omotosho acknowledged the ICPC’s duty to combat crime in Nigeria, calling it sacrosanct. However, he said this duty must be balanced against citizens’ rights.

He further noted that the Money Laundering Act also grants the Economic and Financial Crimes Commission (EFCC) the power to freeze accounts but limits such freezes to 72 hours. He argued that this limitation ensures suspected accounts cannot be accessed while enforcement agencies approach a court.

Justice Omotosho concluded that freezing an account for up to one year, as permitted under Section 45(1) of the ICPC Act, is unreasonable, likely to result in abuse, and usurps judicial powers. He ruled that the ICPC Chairman’s freezing orders would now only be valid for 72 working hours unless extended by a court of law if investigations remain incomplete.