Prosecutor Luis Moreno-Ocampo wants Public Service head Francis Muthaura to stop chairing a key security organ.
Mr Muthaura chairs the National Security Advisory Committee, and the International Criminal Court (ICC) fears he might influence the collection of evidence from witnesses and victims of the post-poll violence.
The ICC also would like Deputy Prime Minister Uhuru Kenyatta to relinquish his position on the Witness Protection Board, on which he serves by virtue of his portfolio as Finance Minister.
Mr Moreno-Ocampo said he would write to the government to ensure that Mr Muthaura does not continue to exercise authority over the police.
“Mr Muthaura has a role as a superior of police. Before we take evidence from the police and some witnesses, we want to ensure he has no powers on the police. I will tomorrow (on Tuesday) write a letter to the government to prevent Mr Muthaura from influencing the police,” he said.
The government said Mr Muthaura will continue to chair the committee until the letter is received.
Mr Moreno-Ocampo, however, said it was up to the government to decide when the suspects who still hold government positions should resign from their jobs.
“We know that after the ruling, they are suspects and after they are charged, they will become accused. The government can also define what indictment is under its law.”
Others Mr Moreno-Ocampo holds responsible for crimes during the chaos are MPs William Ruto and Henry Kosgey, former Police Commissioner Hussein Ali and radio presenter Joshua arap sang. They have summonses to appear before pre-trial chamber judges on April 7.
Mr Muthaura chairs the powerful National Security Advisory Committee that advises the National Security Council President Kibaki chairs on issues likely to threaten the country’s security such as famine. The committee does not take any action.
Members are Vice President Kalonzo Musyoka (as minister for Home Affairs), Yusuf Haji (Defence), George Saitoti (acting Foreign Affairs) and Attorney General Amos Wako.
It also has on board Lt-Gen Njuki Mwaniki (Army Commander), Maj-Gen Harold Tangai (Air Force Commander), Maj-Gen Samson Mathethe (Kenya Navy Commander) Police Commissioner Mathew Iteere and National Security Intelligence Service boss Michael Gichangi.
It is in his role as advisory committee chair that Mr Moreno-Ocampo believes Mr Muthaura instructed the police not to use force against Mungiki fighters who killed and wounded civilians in Naivasha and Nakuru.
On Mr Kenyatta, he said: “Any person who has anything to do with witness protection should not be involved. This is likely to affect the programme.”
Mr Ocampo’s interview with journalists via video link comes against a backdrop of heated political exchanges between PNU and ODM.
On Monday, Mr Moreno-Ocampo did not want to be drawn into arguments that the ICC mission on Kenya was subject to political manipulations.
“The debate about the deferrals by the United Nations Security Council is a political debate. It is valid because the UN Security Council has powers to postpone the proceedings… I am not part of the political debate. I am not interested in anything else other than the killings. How to manage these discussions in a proper way is the duty of the leadership.”
He said that even though the judges dismissed the charges relating to the killings in Nairobi’s Kibera slums and Kisumu, his office was discussing the possibility of appealing, saying, there were technical reasons why the judges did not include the evidence.
“We are debating and we are likely to appeal before the proceedings begin,” he said.
They did not charge any leader from Mungiki in the two cases, and instead went for Mr Kenyatta because the leaders can be dealt with locally.
“Mr Kenyatta was the most senior person, others were involved but it is not our case. The government can decide to deal with them,” he said.
Mr Kenyatta is accused of using Mungiki fighters to cause killings in Naivasha and Nakuru during the post-election violence.
The government has received summonses from the ICC to ensure the suspects appear before the judges on April 7 this year. Mr Wako confirmed he had received the summonses.
On whether the Kenya case will be pursued with as much enthusiasm as he is doing after next May when he retires, the prosecutor said: “The Office of the Prosecutor is an institution and there will be no change. With a new prosecutor full of energy, the institution will work the same way.”